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‘Speculation not enough’ - Judge rules against Hart seeking special election due to ballot issue in primary

Phil Hart

Phil Hart

— District 7 Republican candidate Phil Hart will not get his second chance this year to run for the statehouse.

In an Aug. 16 judgment, District Judge Gregory FitzMaurice dismissed the Kellogg resident’s suit seeking a special election for the Dist. 7B seat. His issue was he lost votes – and subsequently his chance at election — due to his name being temporarily struck from the ballot by the Idaho Secretary of State’s Office due to a residency issue.

Hart ran against incumbent Paul Shepherd of Riggins in the May 15 primary election, losing 2,253 to 3,197. With this decision, Shepherd will run unopposed in the upcoming Nov. 6 general election.

“Although there are unresolved issues regarding Hart’s residency,” Judge FitzMaurice concluded in his eight-page order, “he has not shown that any irregularities in the voting process would have caused 945 votes to be cast in his favor.”

The core of the suit is the residency question, whether Hart was a resident and registered elector within District 7 for one year preceding the general election – “This material issue of fact remains unsolved,” FitzMaurice stated with Hart signing an affidavit he was and the secretary of state (SOS) saying he wasn’t.

Less than a month prior to the May 15 primary election, Hart was informed by the SOS he was ineligible to run as he did not meet state residency requirements. The SOS then informed the Idaho County Clerk’s Office to mark Hart’s name off the ballot and that votes for him should not be counted. A week later, the SOS reversed that decision, due to a similar situation involving a District 5 candidate and that both candidates be treated the same.

Hart filed suit against the SOS and Shepherd on June 4, stating there was no statutory or other legal authority to declare him ineligible nor direct the Idaho County clerk to remove his name from the ballots. He alleged the action as unlawful, and that subsequent news and social media coverage both compromised and “irretrievably damaged” his candidacy.

“Even if all 101 absentee ballots with Hart’s name crossed out were cast in favor of him, it would not have been enough for him to win the election,” FitzMaurice wrote.

“Hart has not provided any evidence to support his claim that any of the absentee voters who received the ballot with his name crossed off would have voted for him,” he said. “Nor has he presented any evidence to show that but for the controversy about his name being on the ballot, he would have received more total votes than his opponent.”

“Mere speculation on the part of Hart is not enough to reject votes from voters who have complied with the law and done their civic duty,” FitzMaurice wrote. Further, requiring District 7 voters to vote again in a special election may disenfranchise those who voted May 15, he continued, as they may choose not to vote again or may not be aware of the special election.

“Asking voters to vote again, based on mere speculation, does not further the legislative goals of making the election process accessible for citizens,” he said.

Hart was represented in this matter at a July 30 hearing by attorneys Anhur Macomber and Thomas Katsilometes. Representing the state were deputy attorney general Cynthia Yee-Wallace, election deputy Timothy Hurst and chief of civil litigation Steve Olsen.


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